UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEBORAH R. NORAH,

Plaintiff,

Civil Action 2:11-cv-00250

vs. Judge Algenon L. Marbley

Magistrate Judge E.A. Preston Deavers

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff, Deborah R. Norah, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)

for review of a final decision of the Commissioner of Social Security (“Commissioner”)

denying her application for social security disability insurance benefits and supplemental

security income. Plaintiff filed her applications for benefits on March 21, 2007, alleging that she

has been disabled since January 1, 2007. Plaintiff alleges disability as a result of back pain,

depression, and mood swings. (R. at 148, 164.) 

After initial administrative denials of her claim, Plaintiff appeared and testified at a

hearing before an Administrative Law Judge (“ALJ”) on March 15, 2010. (R. at 40–66.) A

vocational expert also appeared and testified. (R. at 66-68.) On May 25, 2010, the ALJ issued a

decision finding that Plaintiff was not disabled. (R. at 18-31.) On December 30, 2010, the

Appeals Council advised Plaintiff that it granted Plaintiff’s request for review. (R. at 8-11.) On

February 24, 2011, the Appeals Council rendered its final decision finding that Plaintiff was not

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disabled. (R. at 4-6.) In reaching this decision, the Appeals Council relied primarily on the

ALJ’s findings. (See id.) 

Plaintiff thereafter timely commenced this civil action. In her Statement of Errors,

Plaintiff contends that the ALJ and Appeals Council erred in considering whether she met

Listing 12.05C for mental retardation within 20 C.F.R. Part 404, Subpart P, Appendix 1. 

Plaintiff also contends that the ALJ and Appeals Council failed to recognize the full extent of her

mental limitations in assessing her residual functional capacity. Following the Commissioner’s

Memorandum in Opposition, the matter is now ripe for decision. For the reasons that follow, it

is RECOMMENDED that the Court AFFIRM the decision of the Commissioner.

II. PLAINTIFF’S TESTIMONY

Plaintiff was forty six years old at the time of the administrative hearing. (R. at 40.) She

has a tenth grade education. (Id.) She stated, however, that she was in special education classes

that began after she flunked the first grade. (R. at 40, 62.) Plaintiff testified that she tried to

obtain her GED, but was unable to do so because of her “mental capability.” (R. at 54.) 

Plaintiff testified that she was able to write and read, but suggested that she struggled with

reading. (R. at 40, 65.) She could write and read a grocery list, but always forgot something on

it. (R. at 40-41.) Plaintiff reported that she could not count change and when she worked at

McDonald’s she did not operate the cash register. (R. at 41.) Plaintiff said that she passed a

written driving exam two years earlier, but just barely. (R. at 61.)

Plaintiff testified that she was unable to work because of pain in her hands and arms. (R.

at 43.) She also reported pain in her knees and back. (R. at 47–49.) Plaintiff stopped working at

McDonald’s a year before the hearing because she was in pain and was frequently having to

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leave work early. (R. at 44.) 

Plaintiff noted that her concentration and short-term memory were poor. (R. at 54.) 

Plaintiff stated that she experiences crying spells three or four times per week and frequently

thought about “ending it all.” (R. at 52–53.) She reported that she becomes nervous around

other people. (R. at 54.) Plaintiff stated that she passed her days by “look[ing] at educational

programs or read[ing] a book.” (R. at 59.) She used to write poetry but pain in her hands forced

her to stop. (R. at 65-66.) She noted that she read the Bible or a GED book. (R. at 65.) Plaintiff

reported driving occasionally and going to the store. (R. at 56, 66.) She was able to clean

dishes, cook, and do small amounts of laundry. (R. at 58.)

III. MEDICAL RECORDS1

A. Lee Howard, Ph.D.

Psychologist, Lee Howard, Ph.D., examined Plaintiff on August 21, 2007. (R. at

255–64.) Plaintiff complained that she was depressed, noting that she felt depressed

approximately twice a week for a period of “a few hours.” (R. at 256.) She reported depression

for the past four years. (Id.). Plaintiff noted that she had received a past psychological

evaluation, but had not received any follow-up treatment. (Id.)

Plaintiff reported that she failed first grade and was in special education for reading in the

second grade. (R. at 257-58.) She was able to read and write and completed the tenth grade. (R.

1

 The undersigned recognizes that Plaintiff alleges disability in part because of her

physical impairments. The medical records indicate that Plaintiff has received treatment for

various conditions including a cyst in her left wrist. Both the ALJ and the Appeals Council

assigned exertional limitations due to these conditions. Plaintiff’s Statement of Errors, however,

focuses primarily on Plaintiff’s mental impairments and limitations. Accordingly, the Court will

focus its review of the medical evidence on Plaintiff’s mental impairments and limitations. 

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at 257.) At the time of the evaluation, Plaintiff was working part-time at McDonald’s. (R. at

258.) Her interests were writing and her grandchildren. (Id.). She performed housework once a

week, cooked twice per day, drove twice per week, and occasionally attended church. (Id.)

Plaintiff reported crying spells, suicidal ideation the night before the examination, and one

suicide attempt in the remote past. (R. at 259.) She denied any current imminent intent. (Id.) 

Plaintiff also described bipolar symptomatology and stated that she has a low energy level. (R.

at 260.) 

Dr. Howard found Plaintiff to be “fairly dramatic and histrionic,” noting that her

complaints contained extensive embellishment. (Id.) He found Plaintiff’s social presentation,

speech rate, and vocabulary usage and recognition all to be generally normal. (Id.) Dr. Howard

reported that Plaintiff’s thoughts were oriented, relevant, goal-directed, and coherent. (Id.) Dr.

Howard found Plaintiff’s immediate memory to be reduced. (Id.) Her long-term memory was

retained for recent—as opposed to remote—events, but reduced overall. (R. at 261.) Dr.

Howard concluded that Plaintiff’s general fund of knowledge was slightly below normal. (Id.) 

Finally, Dr. Howard concluded that Plaintiff had a “somewhat limited” ability to think

abstractly; that her sustained concentration was variable; and that she was capable of simple

arithmetic, but not moderate or complex tasks. (R. at 261.) 

Dr. Howard diagnosed Plaintiff with a depressive disorder. (R. at 262.) He assigned

Plaintiff a Global Assessment of Functioning (GAF) score between 75 and 80.2

 Dr. Howard

2

 The GAF scale is used to report a clinician’s judgment of an individual’s overall level

of functioning. Clinicians select a specific GAF score within the ten-point range by evaluating

whether the individual is functioning at the higher or lower end of the range. See Am.

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision

at pp. 32-34 (“DSM-IV-TR”). A GAF score of between 71 - 80 is indicative of transient and

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noted at this time that “[b]orderline range intellectual ability would be his rule-out” diagnosis

without the benefit of IQ testing. (R. at 262.) He opined that “Plaintiff retained adaptive

functioning and her GAF is not significantly impaired.” (R. at 262.) Dr. Howard concluded that

Plaintiff’s ability to understand and execute simple instructions was slightly below normal. (R.

at 263.) He felt that Plaintiff was capable of understanding and executing simple to low

moderate tasks. (Id.) Dr. Howard concluded Plaintiff could maintain appropriate attention and

concentration for the performance of simple tasks. (Id.) He also found Plaintiff capable of

relating to co-workers, supervisors, and the general public. (Id.) Finally, Dr. Howard

determined that Plaintiff was capable of responding to work stressors, as indicated by her

part-time job at McDonald’s. (Id.)

B. Tonnie Hotle, Psy.D.

State agency physician Tonnie Hoyle, Psy.D., performed a “Psychiatric Review

Technique” on October 3, 2007, based on Plaintiff’s clinical interview with Dr. Howard. (See R.

at 266–79.) Dr. Hoyle diagnosed Plaintiff with depressive disorder, but found that this condition

did not meet Listing 12.04 for affective disorders. (R. at 269.) Dr. Hoyle opined that Plaintiff

had no restriction in activities of daily living; mild difficulties in maintaining social functioning;

and mild difficulties in maintaining concentration, persistence, or pace. (R. at 276.) Based on

Plaintiff’s clinical interview and Dr. Howard’s findings, Dr. Hoyle ultimately concluded that

Plaintiff was “not severely limited by psychological factors.” (R. at 278.) On August 5, 2008,

John Waddell, Ph.D., affirmed Dr. Hoyle’s opinion.

expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family

argument); no more than slight impairment in social, occupational, or school functioning (e.g.,

temporarily falling behind in schoolwork). Id. at 34.

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C. John L. Tilley, Psy.D.

In September 2008, John Tilley, Psy.D., a clinical psychologist, completed a consultative

psychological evaluation on behalf of the Department of Job & Family Services. (R. at 389-99.) 

Plaintiff reported that her primary barrier to employment was nervousness. (R. at 390.) Plaintiff

noted that she dropped out of high school because she had a baby. (Id.). She characterized

herself as academically deficient and noted she had difficulty with reading and math. (Id.) She

reported that she was held back in the first grade and believed that she might have been held

back one or two other times. (Id.) Plaintiff also reported taking special education classes. (Id.) 

At the time of Dr. Tilley’s evaluation, Plaintiff was working part time at McDonald’s. (Id.) She

claimed that she could not work full-time because of rheumatoid arthritis. (R. at 391.) She

denied having any “substantial interpersonal difficulties with co-workers.” (Id.)

Dr. Tilley reported that Plaintiff was polite and cooperative during the interview and did

not display any marked difficulties with frustration, motivation, or agitation. (R. at 392.) Dr.

Tilly found Plaintiff’s affect to be within normal limits. (Id.) Plaintiff reported that “years ago,

she made a suicidal gesture, which involved inflicting some superficial wounds on her wrist.” 

(Id.) She described that she became nervous around both new people and large groups of people. 

(Id.)

Dr. Tilley administered the Weschler Adult Intelligence Scale–Third Edition (WAIS-III)

test. (R. at 393-94.) Testing revealed a Verbal IQ of 69, a Performance IQ of 83, with

Plaintiff’s Full Scale IQ was 74. (R. at 394.) Plaintiff’s verbal score was in the extremely low

range, her full scale score was in the borderline range, and her performance score was in the low

average range. (Id.) Academic testing established reading at the 7th grade level, numerical

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operations at the 2nd grade level, and spelling at the 3rd grade level. (Id.) 

Dr. Tilley diagnosed Plaintiff with borderline intellectual functioning, anxiety disorder,

and depressive disorder. (R. at 396.) He assigned Plaintiff a GAF of 70.3

 Dr. Tilley opined that

“[f]rom a purely psychological perspective the patient is employable.” (R. at 396.) He

elaborated that Plaintiff’s borderline intellectual functioning and commensurate academic

deficits would limit her “occupational options to a degree” but would “not serve as a terminal

barrier to future employability.” (Id.) Finally, Dr. Tilly completed a checkmark sheet in which

he assessed Plaintiff’s mental functional capacity. (R. at 398.) Dr. Tilly found that Plaintiff was

either not significantly limited or had no limitation in every category. (Id.) Categories included

the ability to get along with co-workers, the ability to sustain an ordinary routine without special

supervision, and the ability to carry out detailed instructions. (Id.)

D. Educational Records

The record contains Plaintiff’s educational information for grades seven through ten. (R.

at 213.) In the seventh and eighth grade, Plaintiff received mostly Cs with a few Bs and Ds. 

(Id.) In the ninth grade, Plaintiff received four Cs and two Ds. (Id.) Finally, in the tenth grade,

Plaintiff failed nearly all of her classes. (Id.)

IV. EXPERT TESTIMONY

Richard P. Oestreich, Ph.D., testified as a vocational expert at the administrative hearing. 

(R. at 66–68.) Dr. Oestreich classified Plaintiff’s past employment as a housekeeper and a fast

food worker as both light and unskilled. (R. at 67.) The ALJ asked the Dr. Oestreich to consider

3

 A GAF score of 61-70 indicates that a person has only mild symptoms or some

difficulty with social, occupational, or school functioning, but such a person can generally

function pretty well and have some meaningful interpersonal relationships. DSM-IV-TR at 34.

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a person who was limited to a restricted range of light work and who was limited to simple,

repetitive work. (R. at 67.) Based on this hypothetical, Dr. Oestreich testified that such an

individual could perform Plaintiff’s past relevant work. (R. at 67-68.) 

V. ADMINISTRATIVE DECISIONS

On May 25, 2010, the ALJ issued his decision. (R. at 18-31.) At step one of the

sequential evaluation process,4

 the ALJ found that Plaintiff had not performed substantially

gainful activity since March 21, 2007. The ALJ found that Plaintiff had the severe impairments

of borderline intellectual functioning and cyst in wrist status post excision with good result. (R.

at 20.) He further found that Plaintiff did not have an impairment or combination of impairments

that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (R. at 23.) In doing so, the ALJ explicitly considered Listing 12.05C for

mental retardation.

4

 Social Security Regulations require ALJs to resolve a disability claim through a

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). Although a

dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d

727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five

questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the

criteria of an impairment set forth in the Commissioner’s Listing of Impairments,

20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the claimant perform

his or her past relevant work?

5. Considering the claimant’s age, education, past work experience, and residual

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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The ALJ set forth Plaintiff’s residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform less than the full range of light work as

defined in 20 CFR 416.967(b). Specifically, the claimant can lift and/or carry twenty

pounds occasionally and ten pounds frequently. She can sit, stand and/or walk about

six hours total in an eight-hour workday. Her ability to push and/or pull (to include

operation of both foot and hand controls) is unlimited within the weights described

above. She can balance frequently, and occasionally stoop and climb ladders, ropes

and scaffolds. She can perform fine and gross manipulation frequently with both

upper extremities. The claimant has no visual, communicative or environmental

restrictions. As for any nonexertional limitations, the claimant is limited to simple,

repetitive tasks.

(R. at 24.) Relying on the Dr. Oestreich’s testimony, the ALJ determined that Plaintiff is capable

of performing her past relevant work as a housekeeper and fast food worker. (R. at 30.) He

therefore concluded that Plaintiff was not disabled. (R. at 31.)

The Appeals Council issued its decision on February 24, 2011. The Appeals Council

agreed with the ALJ’s findings at steps one through four of the evaluation process, including that

Plaintiff was capable of performing her past work. Accordingly, the Appeals Council found that

Plaintiff was not disabled within the meaning of the Social Security Act.

VI. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.

1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the [Commissioner’s] decision, this Court defers to that finding ‘even if there

is substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). Finally, even if the Commissioner’s decision meets the substantial evidence standard,

“‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own

regulations and where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d

742, 746 (6th Cir. 2007)).

VII. LEGAL ANALYSIS

Plaintiff challenges the Commissioner’s decision on two basic grounds. First, Plaintiff

maintains that the ALJ and Appeals Council erred in considering whether Plaintiff met the

requirements of Listing 12.05C at step three of the sequential analysis. Second, Plaintiff

contends that the RFC assignment did not fully account for her mental limitations. 

A. Listing 12.05C

“At step three of the evaluation process, it is the burden of the claimant to show that he

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[or she] meets or equals the listed impairment.” Thacker v. Soc. Sec. Admin., 93 F. App’x 725,

727–28 (6th Cir. 2004). Accordingly, “[w]hen a claimant alleges that he [or she] meets or equals

a listed impairment, he [or she] must present specific medical findings that satisfy the various

tests listed in the description of the applicable impairment or present medical evidence which

describes how the impairment has such equivalency.” Id. at 728. 

The United States Court of Appeals for the Sixth Circuit has emphasized that there is no

“heightened articulation standard” in considering the listing impairments. Bledsoe v. Barnhart,

165 F. App’x 408, 411 (6th Cir. 2006) (holding that an ALJ is not obligated to “spell[] out every

consideration that went into the step three determination”). Instead, the Court reviews whether

substantial evidence supports the ALJ’s findings. See id. The Sixth Circuit has held, however,

that an ALJ’s decision must contain sufficient analysis to allow for meaningful judicial review of

the listing impairment decision. Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 415–16

(6th Cir. 2011) (remanding where “[n]o analysis whatsoever was done as to whether [the

claimant’s] physical impairments . . . met or equaled a Listing under section 1.00”). In

remanding for a lack of analysis, the Reynolds Court emphasized that it was “possible that the

evidence [the claimant] put forth could meet” Listing 1.04. Id. at 416.

Another district court has recognized that the requirements for an ALJ’s listing

impairment analysis are “[not] so legalistic that the requisite explanation and support must be

located entirely within the section of the ALJ’s decision devoted specifically to step three . . . .” 

Staggs v. Astrue, No. 2:09–cv–00097, 2011 WL 3444014, at *4 (M.D. Tenn. Aug. 8, 2011). 

Rather, the Sixth Circuit has implicitly acknowledged that a court must read the ALJ’s step-three

analysis in the context of the entire administrative decision, and may use other portions of a

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decision to justify the ALJ’s step-three analysis. See 165 F. App’x at 411 (finding that an ALJ

appropriately considered a claimant’s combined impairments at step three in part because “[t]he

ALJ described evidence pertaining to all impairments, both severe and non-severe, for five pages

earlier in his opinion and made factual findings”). Various federal courts have acknowledged

that other portions of an ALJ’s decision may justify his or her step-three conclusions. See, e.g.,

Smith v. Astrue, No. 11–1574, 2011 WL 6188731, at *1 (4th Cir. Dec. 14, 2011) (using an

“ALJ’s analysis at subsequent steps of the evaluation” to find that substantial evidence supported

the step-three determination); Fischer-Ross v. Barnhart, 431 F.3d 729, 735 (10th Cir. 2005)

(holding that an ALJ’s findings at step four and five precluded a claimant from qualifying for a

listing under step three).

This case specifically involves Listing 12.05C. To satisfy Listing 12.05C, a claimant

must establish the following:

Mental retardation: Mental retardation refers to significantly subaverage general

intellectual functioning with deficits in adaptive functioning initially manifested

during the developmental period; i.e., the evidence demonstrates or supports onset

of the impairment before age 22.

The required level of severity for this disorder is met when the requirements in A,

B, C, or D are satisfied.

. . .

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical

or other mental impairment imposing an additional and significant

work-related limitation of function . . . .

20 CFR Pt. 404, Subpt. P, App. 1 § 12.05. The Sixth Circuit has stressed that Listing 12.05

requires a claimant to establish both the diagnostic description of mental retardation as well as

one of the criteria set forth in subdivisions A through D.

To satisfy the diagnostic description, a claimant must demonstrate three factors:

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“(1) subaverage intellectual functioning; (2) onset before age twenty-two; and (3) adaptive-skills

limitations.” Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009). A claimant

may meet the onset requirement either directly or circumstantially. Specifically, the Sixth

Circuit has found that “[w]hile the claimant may use a qualifying IQ score before the age of 22

to demonstrate that his subaverage intellectual functioning initially manifested during his

developmental period . . . a claimant is by no means required to produce an IQ score obtained

prior to age 22.” West v. Comm’r Soc. Sec. Admin., 240 F. App’x 692, 699 (6th Cir. 2007).

“The adaptive skills prong evaluates a claimant’s effectiveness in areas such as social

skills, communication skills, and daily-living skills.” Hayes, 357 F. App’x at 677. Although

Listing 12.05 does not define “adaptive functioning,” another portion of the Listings defines

“adaptive activities” as “cleaning, shopping, cooking, taking public transportation, paying bills,

maintaining a residence, caring appropriately for your grooming and hygiene, using telephones

and directories, and using a post office.” 20 CFR Pt. 404, Subpt. P, App. 1 § 12.00(C)(1). 

Furthermore, in considering Listing 12.05 the Sixth Circuit has noted “[t]he American

Psychiatric Association defines adaptive-skills limitations as ‘[c]oncurrent deficits or

impairments . . . in at least two of the following areas: communication, self-care, home living,

social/interpersonal skills, use of community resources, self-direction, functional academic

skills, work, leisure, health, and safety.’” Id. (quoting DSM-IV-TR at 49).

The plain language of Listing 12.05 does not identify how severe limitations must be to

qualify as “deficits in adaptive functioning.” Pendleton v. Comm’r of Soc. Sec., No.

1:10–cv–650, 2011 WL 7070519, at *11 (S.D. Ohio Dec. 23, 2011). Nevertheless, case law

from the Sixth Circuit and other federal courts, suggests that a claimant must have relatively

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significant deficits to satisfy the Listing. See, e.g., West, 240 F. App’x at 698–99 (6th Cir. 2007)

(suggesting that a claimant’s ability to understand and retain simple instructions; maintain

concentration and attention for basic tasks; interact effectively with co-workers; and deal with

work stress all supported a finding of no deficiencies in adaptive functioning); Harris v. Comm’r

of Soc. Sec., 330 F. App’x 813, 815–16 (11th Cir. 2009) (claimant who did well in special

education classes; was able to perform several jobs; and who had mild limitations in daily living

activities, social functioning, and concentration did not have the type of deficits in adaptive

functioning required for Listing 12.05C); McMillan v. Comm’r of Soc. Sec., No. 1:10–cv–00308,

2012 WL 90264, at *6 (W.D. Mich Jan. 11, 2012) (holding that insignificant or trivial deficits

were not sufficient to satisfy Listing 12.05 and ALJ’s finding of moderate restrictions in daily

living did not require a finding of deficits in adaptive functioning).

Turning to the instant matter, within his step-three analysis, the ALJ described the

requirements of Listing 12.05C, including deficits in adaptive functioning. The ALJ found that

Plaintiff failed to satisfy Listing 12.05C because “[t]he objective medical evidence fails to show

a valid performance or full scale IQ of 60 through 70 before age 22 . . . .” (R. at 24.) This

statement implies that a claimant must prove the onset requirement of mental retardation by

producing an IQ score taken during the development period. As detailed above, however,

claimants may meet the onset requirement either directly or circumstantially, and are not

required to provide IQ scores obtained before the development period. To the extent the ALJ

imposed this requirement, it was error.

Nevertheless, because other findings within the ALJ’s decision justify his Listing 12.05C

conclusion, the Court should still affirm the ALJ’s decision. Cf. West, 240 F. App’x at 698

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(affirming an ALJ’s decision, even though he mistakenly implied that Listing 12.05C required an

IQ score before the age of 22, because the claimant failed to produce evidence of deficiencies in

adaptive functioning and medical evidence supported the ALJ’s conclusion). Despite the ALJ’s

imperfect reasoning at step three, he articulated in other portions of his opinion that Plaintiff

does not have any adaptive functioning deficits. Specifically, in finding that Plaintiff had

borderline intellectual functioning, the ALJ credited Dr. Howard’s conclusion that Plaintiff “did

not have any adaptive functioning deficit . . . .” (R. at 21.) Furthermore, later in his decision, the

ALJ assigned the opinions of Dr. Howard significant weight and emphasized that Dr. Howard’s

assessment was an accurate representation of Plaintiff’s mental status. (R. at 24–25.) As the

ALJ recognized in his decision, mental retardation requires deficits in adaptive functioning. 

Consequently, the ALJ’s finding that Plaintiff does not have such deficits served as appropriate

grounds for his Listing 12.05C conclusion.5

 

Substantial evidence supports the ALJ’s decision that Plaintiff does not have deficits in

adaptive functioning. Following a clinical examination of Plaintiff, Dr. Howard concluded that

Plaintiff “retained adaptive functioning . . . .” (R. at 262.) The GAF range Dr. Howard assigned

Plaintiff, 75-80, suggests no more than slight impairments in functioning. See DSM-IV-TR at

34. As the ALJ noted, Dr. Tilley also concluded that Plaintiff intellectual impairments “would

5

 The ALJ also credited the diagnoses of Drs. Howard and Tilley and found that Plaintiff

had borderline intellectual functioning. This conclusion also weighs against a finding that

Plaintiff suffered from mental retardation within the meaning of Listing 12.05. See Cooper v.

Comm’r of Soc. Sec., 217 F. App’x 450, 452 (6th Cir. 2007) (finding substantial evidence that a

claimant did not meet the diagnostic description in part because medical sources diagnosed the

claimant with borderline intellectual functioning and the record contained no diagnosis of mental

retardation).

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not serve as a terminal barrier to future employment.” (R. at 396.) The GAF score Dr. Tilley

assigned, 70, indicates that Plaintiff generally functioned relatively well, with only mild

symptoms. See DSM-IV-TR at 34. Furthermore, Dr. Tilley completed a Mental Functional

Capacity Assessment and found that Plaintiff had either no limitations or no significant

limitations in every category he considered. (R. at 398.) Finally, Plaintiff’s own testimony

suggests that she was capable of a variety of activities including driving, shopping, cooking,

washing dishes, reading, and laundry. Additionally, Plaintiff continued to perform part-time

work well into her alleged disability period.

In maintaining that she satisfies the diagnostic description of Listing 12.05C, Plaintiff

stresses her poor academic record. The undersigned is not persuaded, however, that Plaintiff’s

academic record, and participation in special education classes, required the ALJ to find her

mentally retarded under Listing 12.05. Plaintiff’s academic records reflect that she was able to

obtain passing grades, and mostly Cs, until the tenth grade. Furthermore, the record suggests

that Plaintiff’s poor performance in tenth grade was at least partially because she had a baby. 

(See R. at 390.) Under these circumstances, and given the record evidence outlined above, it was

reasonable for the ALJ to conclude that Plaintiff did not have deficits in adaptative functioning

as required under Listing 12.05C. 

B. Mental Residual Functional Capacity

Within her second contention of error, Plaintiff maintains that the ALJ should have

addressed her need for oral instructions and increased supervision within his RFC. In making

this argument Plaintiff contends that the ALJ should have reached such findings based on her

verbal IQ score of 69 and the requirements of Social Security Ruling 85-16.

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Social Security Ruling 85-16 provides, in pertinent part:

[A]n individual, in whom the only finding in intellectual testing is an IQ between 60

and 69, is ordinarily expected to be able to understand simple oral instructions and

to be able to carry out these instructions under somewhat closer supervision than

required of an individual with a higher IQ. Similarly, an individual who has an IQ

between 70 and 79 should ordinarily be able to carry out these instructions under

somewhat less close supervision.

SSR 85-16, 1985 WL 56855, at *3 (1985). The Ruling makes clear, however, that the

Commissioner should also consider other evidence, including the observations of medical

sources, in assessing a claimant’s mental RFC. Id. at 4.

Plaintiff’s second contention of error is also unavailing. As the plain language of Ruling

85-16 and this Court’s past decisions both suggest, Ruling 85-16 does not compel the conclusion

that all claimants with an IQ score between 60 and 69 receive RFC limitations of oral instruction

and close supervision. See Delp v. Comm’r of Soc. Sec., No. 2:09-cv-460, 2010 WL 3672330, at

*4 (S.D. Ohio Sept. 16, 2010) (“Ruling 85-16 does not state that an individual with such a low

IQ score always requires ‘somewhat closer supervision.’”). Additionally, as Defendant notes,

Plaintiff’s verbal IQ score of 69 was not the only intellectual testing available. Plaintiff also

received a full scale IQ score of 74 and a performance IQ score of 83.

Moreover, the ALJ properly omitted restrictions for oral instruction or close supervision

because substantial evidence of record indicated that Plaintiff did not need these

accommodations. Although Dr. Howard found Plaintiff capable of understanding and executing

instructions within the low to moderate task range, he did not indicate that Plaintiff required oral

instruction. Additionally, Dr. Howard found Plaintiff capable of relating to supervisors and did

not indicate that Plaintiff required an increased degree of supervision. Dr. Tilley likewise found

Plaintiff to be capable of performing simple instructions and not significantly limited in carrying

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out detailed instructions. Dr. Tilley’s mental functional capacity evaluation further indicated

that Plaintiff was capable of sustaining an ordinary routine without special supervision. Under

these circumstances, the ALJ reasonably accommodated Plaintiff by assigning an RFC limiting

her to simple, repetitive tasks.

VIII. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that the Court AFFIRM the decision

of the Commissioner.

IX. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

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review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: February 13, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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